When a commercial dispute arises, the forum can affect cost, speed, confidentiality, evidence and enforcement. The appropriate route depends on the contract, the parties, the urgency of the issue and the remedy sought. This guide explains the questions to consider before starting arbitration or court proceedings in Kenya.
Start with the dispute clause
Read the agreement before choosing a forum. A valid arbitration clause may require the parties to arbitrate rather than litigate. It should be checked for the chosen rules, seat, appointing process, language, governing law and scope. A clause may also require negotiation or mediation before either side begins a formal case.
When arbitration may be suitable
- The parties need a private process for commercially sensitive material.
- The dispute is technical and the parties want a decision-maker with relevant experience.
- The contract involves parties or assets in more than one country.
- The parties need a process with a timetable tailored to the dispute.
Arbitration still requires careful budgeting. Tribunal, institutional, legal and expert costs can be material, and an award must be enforced through the applicable legal process.
When court proceedings may be suitable
Court proceedings may be appropriate where there is no arbitration agreement, a public remedy is needed, a party requires urgent court orders, or the dispute concerns rights that cannot be determined privately. Jurisdiction, limitation periods, evidence and the practical prospect of enforcement should be assessed before filing.
For advice on the forum and procedure that fits your facts, see our arbitration and ADR practice or commercial litigation practice. This is general information and not legal advice.